[00:00:00] Speaker 03:
Next case is number 18-1095 BASF Corporation versus Ethon Inc.

[00:00:09] Speaker 03:
Mr. Blythe.

[00:00:24] Speaker 00:
Good afternoon.

[00:00:25] Speaker 00:
May it please the court.

[00:00:27] Speaker 00:
This appeal was focused on the obviousness standard that the Patent Trial and Appeal Board relied upon an inter-partis review of Enthone's 992 patent.

[00:00:37] Speaker 00:
The 992 patent is directed to a method for electro-deposition of copper into very small features of semiconductors.

[00:00:47] Speaker 01:
Mr. Blythe, in the blue brief at 49, you say significantly the board reached the opposite conclusion

[00:00:55] Speaker 01:
in its decision on 786.

[00:00:59] Speaker 01:
Why is that significant as a matter of law?

[00:01:01] Speaker 01:
I mean, what requires the PTAB to reach the same conclusion when you have different patents involved?

[00:01:07] Speaker 01:
And there are significantly different patents.

[00:01:11] Speaker 00:
Well, I think I would disagree that there are significantly different patents, but there is no requirement that the board reach the same decision.

[00:01:16] Speaker 00:
I think it's significant because we're talking about closely related patents with almost the same specification.

[00:01:21] Speaker 00:
I mean, the same prior arch that was combined.

[00:01:24] Speaker 01:
Here, the claims involve superfilling rather than conventional, informal filling.

[00:01:30] Speaker 01:
And the T-TEB rested its finding that ailing or awling didn't demonstrate tectonic copolymers would have any particular or any applicability in methods requiring superfilling.

[00:01:46] Speaker 01:
That's a critical difference between the two patents, is it not?

[00:01:49] Speaker 00:
That is what the board found.

[00:01:51] Speaker 00:
That is how they distinguished the two results.

[00:01:53] Speaker 00:
One set of claims required superfilling.

[00:01:55] Speaker 00:
The other did not.

[00:01:56] Speaker 01:
Aren't those at least materially different factual circumstances?

[00:01:59] Speaker 00:
Well, but I think why it's still significant that they reach different results is that the motivation to combine that the board found in the 786 case, where they found there was a motivation to combine, was the need to eliminate these voids and other plating imperfections.

[00:02:13] Speaker 00:
That was the motivation to combine enough to take the process in Barset or Morse and combine it with Tetronix and Olin.

[00:02:19] Speaker 00:
Now, that same exact motivation, eliminating voids and other plating imperfections, is actually more applicable, even more important and significant, in a super-filling context.

[00:02:30] Speaker 03:
I'm really confused about this.

[00:02:33] Speaker 03:
It seems to me you're trying to get too much out of this.

[00:02:37] Speaker 03:
The conflict between the two decisions is that, in one, they said that Barstead shows the use of tectronics.

[00:02:48] Speaker 03:
as a suppressor, and the other one, they say, it doesn't.

[00:02:52] Speaker 03:
It's that simple.

[00:02:53] Speaker 03:
You're trying to say that, oh, well, there was a difference on the two patents.

[00:02:57] Speaker 03:
Well, sure, there's a difference between the two patents, which makes two decisions difficult to compare with each other.

[00:03:04] Speaker 03:
And by arguing that the results are inconsistent, you're arguing for something which it seems to me doesn't fly.

[00:03:13] Speaker 00:
And I don't, I think I would agree, John.

[00:03:16] Speaker 00:
I know that the results have to be different.

[00:03:17] Speaker 00:
And I do agree with you about BAR-STAD.

[00:03:19] Speaker 00:
There is a different finding as to BAR-STAD in the two cases.

[00:03:24] Speaker 00:
And the finding as to BAR-STAD in the 786, if that was applied in the 992 case, then you would have a disclosure of tetronics for superfilling in BAR-STAD.

[00:03:34] Speaker 03:
And we do have cases, unfortunately not cited in her brief, which say that where the board, in closely related circumstances like this, says different things, that that's a ground for a remand fight court, and so on and so forth.

[00:03:49] Speaker 00:
I don't know why they weren't cited, but they weren't.

[00:03:52] Speaker 00:
I thought we did cite one.

[00:03:53] Speaker 00:
I'll try to recall it and find it.

[00:03:55] Speaker 00:
But I agree.

[00:03:56] Speaker 04:
I think that is a basis for reading.

[00:03:57] Speaker 04:
What's the specific finding about bar stat as oppressors in the 786 that's inconsistent with the specific finding as to that same question about what bar stat teaches in this case?

[00:04:14] Speaker 04:
Could you just pick up the two pages and show me them side by side?

[00:04:19] Speaker 00:
Yes, so in So looking at the decision in the 786 patents And it's page 17 of that decision and unfortunately the page I'm looking at doesn't have the APX number page yes, seven yes page 17 of

[00:04:48] Speaker 04:
Is that appendix page 409?

[00:04:50] Speaker 04:
I believe that's correct.

[00:04:57] Speaker 00:
Correct, Your Honor.

[00:04:59] Speaker 00:
At the end of the top paragraph there, the board states that VARSTAT discloses polyethylene glycol copolymers as preferable surfactant-type suppressor agents.

[00:05:12] Speaker 00:
and expressly discloses the polyethylene glycol copolymers that were commercially available from BASF under the Tetronic trade name.

[00:05:20] Speaker 00:
Now, the issue here is that that is, to me, a finding that Barstad is disclosing BASF's Tetronic copolymers as surpassing type suppressor agents.

[00:05:30] Speaker 00:
Now, in the 992 patent, the board found that Barstad disclosed

[00:05:37] Speaker 00:
suppressors and surfactants as separate components of the blade.

[00:05:41] Speaker 04:
Where is that?

[00:05:48] Speaker 03:
It's 22.23.

[00:05:48] Speaker 00:
You guys are on APBX 22 going over to 23.

[00:06:10] Speaker 00:
As Infone points out, the compositions described in Barstead and Morrissey include a tetronic compound as a surfactant and not as a suppressor as claimed, where each reference describes suppressors and surfactants as separate components of the electrode deposition bath.

[00:06:26] Speaker 00:
So again, we do think that is one of the reasons.

[00:06:27] Speaker 00:
Not only do they sort of ignore the motivation to combine, which I think is a separate question, but as you point out, Judge Dyke, the findings in Barstead as to whether or not Barstead disclosed

[00:06:37] Speaker 00:
tetronix is a surfactant-type suppressor is also inconsistent.

[00:06:41] Speaker 00:
And if you find that barstat discloses tetronic copolymers as a surfactant-type suppressor, there's no dispute that barstat discloses the superfilling process and therefore using a tetronic suppressor in connection with the superfilling process.

[00:06:56] Speaker 00:
And that was the only thing the board found missing in terms of

[00:06:58] Speaker 00:
really focused on the motivation to combine.

[00:07:01] Speaker 04:
Well, I guess as I read the board opinion, the board didn't, sometimes we don't separate these two things and sometimes we do, but that the emphasis in context was more on the absence of reasonable expectation of success than motivation.

[00:07:17] Speaker 04:
Sometimes those are together because you say you don't have a motivation to do what you don't reasonably expect to succeed anyway.

[00:07:23] Speaker 04:
But on that point, that point very much turns on whether

[00:07:28] Speaker 04:
the patent at issue covers or is limited to the superfilling or covers the conformal plating as well and therefore in the 786 you didn't really have to worry about that because the doubt about these these suppressors working is a doubt about whether they work for superfilling not for

[00:07:59] Speaker 00:
Conformably.

[00:08:01] Speaker 00:
Yes, first, I do agree that the board's decision does not clearly delineate between its discussion and motivation to combine an expectation of success, so it is somewhat unclear.

[00:08:11] Speaker 00:
It's unclear what particular standard they were even applying in terms of an expectation of success.

[00:08:17] Speaker 00:
But the correct standard is only a reasonable expectation of success is required.

[00:08:22] Speaker 04:
And I think what the board did was found... But I don't remember specific, basically a specific counterpoint saying, they said no reasonable expectation of success as to these tectronic suppressors for the particular purpose of superfilling.

[00:08:40] Speaker 04:
And I don't remember that you showed in your brief that as to that particular finding,

[00:08:46] Speaker 04:
there's lacking substantial evidence.

[00:08:49] Speaker 01:
And when you deal with that question, why isn't it appropriate for the PTIB to consider the level of predictability in light of the record?

[00:09:00] Speaker 01:
Because you argue that they applied an overly stringent version of the motivation to combine steps.

[00:09:08] Speaker 01:
But Judge Trano's drilling right to the record.

[00:09:13] Speaker 01:
In light of the record, why isn't it appropriate?

[00:09:17] Speaker 00:
Well, predictability may be considered.

[00:09:19] Speaker 00:
It's not that predictability can't be considered.

[00:09:22] Speaker 00:
But what the board did was took a finding of general unpredictability in the ART and then used that to elevate the requirement for a showing of a very specifically stated motivation to combine.

[00:09:35] Speaker 00:
And the cases are clear that a general finding of unpredictability in the ART is not the requirement.

[00:09:41] Speaker 00:
So for example, the Allergan case, 754 F3R 952 at 965,

[00:09:48] Speaker 00:
It does not matter whether, in that case, a case about hair growth is generally an unpredictable endeavor.

[00:09:54] Speaker 00:
The question more narrowly is whether there would be anticipated success with the particular combination that was being proposed.

[00:10:02] Speaker 03:
Well, I've got to confess, I'm a little confused about this expectation of success.

[00:10:07] Speaker 03:
If Paul and Barstead actually disclose the use of the tectronic compound

[00:10:17] Speaker 03:
in connection with superfilling as a suppressor, you don't have to show, in addition to that, that there's an expectation of success, right?

[00:10:26] Speaker 00:
That's right.

[00:10:28] Speaker 00:
That's right.

[00:10:28] Speaker 03:
So the question that's been the focus here is whether Barstead and Ohling disclosed the use of that tetronic suppressor in connection with superfilling, which has been what the debate is about.

[00:10:43] Speaker 00:
That's right.

[00:10:44] Speaker 00:
And we think that there is more than substantial evidence in the record that Alling relates to superfilling and that Barstead separately discloses tetronix for superfilling, such that either result would lead to the required expectation of success.

[00:11:00] Speaker 01:
And I think the – You argue that – regarding Alling – that the board erred in refusing to consider Alling's prosecution history.

[00:11:11] Speaker 01:
But PTAB said that the prosecution, I'm quoting him, prosecution history of Allin has not been asserted as priority in this proceeding.

[00:11:21] Speaker 01:
That's at 22.

[00:11:22] Speaker 01:
Did you submit it?

[00:11:23] Speaker 01:
And if so, where did you argue that in your opening brief?

[00:11:28] Speaker 00:
So it was not submitted in the opening brief.

[00:11:30] Speaker 00:
It was submitted in connection with a reply and a reply declaration.

[00:11:34] Speaker 00:
But cases such as Genzyme, A25, 1360,

[00:11:39] Speaker 00:
find that cases from this court find that it's acceptable to include references in a reply that show the background knowledge and understanding of a person's ordinary skill in the art.

[00:11:51] Speaker 00:
So that wasn't the reply.

[00:11:52] Speaker 01:
Even if we look at prosecution history, what authority do you have that a patent's prosecution history is dispositive of or bears significant weight

[00:12:03] Speaker 01:
in determining how a person of skill would read all in.

[00:12:07] Speaker 00:
Yeah, we looked around and didn't find a case that specifically addressed prosecution history, showing a level of ordinary skill in the art.

[00:12:13] Speaker 00:
But there are plenty of cases that show that considering other patents and publications are relevant to show the background knowledge of a person of ordinary skill in the art.

[00:12:21] Speaker 00:
It just so happens that in this instance, the prosecution history explicitly spells out a person of ordinary skill in the art based on citations to certain

[00:12:29] Speaker 00:
patents, so it's not just attorney argument in the prosecution history, it's actually citing and block-quoting certain patents as well, would have understood that when they were reviewing OLLing, the same issues relate to super-filling applied to OLLing.

[00:12:43] Speaker 00:
So you're talking about increased aspect ratios, defects.

[00:12:46] Speaker 01:
But they had expert testimony from Enthalme that a person of skill would not understand OLLing as applying to super-filling.

[00:12:55] Speaker 01:
Why couldn't they give that more weight?

[00:12:58] Speaker 00:
I think this is not, two points.

[00:13:01] Speaker 00:
One, I think it's not just an expert battle, because when you look at the way the board analyzed, certainly the board did say we're going to give more weight to those experts than the PSFs.

[00:13:09] Speaker 00:
The board said that.

[00:13:10] Speaker 00:
But then if you dig into the analysis of each of those points, the board is incorrect in sort of each of the ways they did that.

[00:13:16] Speaker 00:
First, they criticized Dr. Pound for not identifying a specific statement in Eiling, and that's not the law under KSR.

[00:13:25] Speaker 00:
They also discounted BSS expert testimony about the similarities between the disclosures between Barstead and Olling because they were drafted by the same attorney for the same client.

[00:13:34] Speaker 00:
But the board gave no reason to analysis as to why that would be a reason a person wearing a skill in the art would disregard the references.

[00:13:40] Speaker 00:
In my mind, that's all the more reason to think they are related if they're very similarly written for a similar client.

[00:13:47] Speaker 00:
One other point that I'd like to make about Olling in particular is that

[00:13:52] Speaker 00:
One of the key issues in OLLING was this reference to 200 nanometer interconnects in OLLING and whether or not that indicates OLLING's applicability to superfilling.

[00:14:01] Speaker 00:
And the board made a key fact error here that needs to be corrected.

[00:14:05] Speaker 00:
The error is that the board found 200 nanometer interconnects can be plated without superfilling.

[00:14:13] Speaker 00:
And the board cited a particular paragraph of Enthon's testimony, Enthon's expert for that proposition,

[00:14:20] Speaker 00:
But that's not what that paragraph said.

[00:14:22] Speaker 00:
That paragraph said that the reference to 200 nanometers in Olling is essentially the only reference to superfilling in Olling.

[00:14:30] Speaker 00:
And of course, that's sort of beside the point.

[00:14:32] Speaker 04:
And that paragraph is on what page of the appendix?

[00:14:39] Speaker 00:
So it's paragraph 69, and its appendix page is 1029 through 1030.

[00:14:51] Speaker 00:
If you look at the actual testimony of Enthon's expert in deposition, he stated multiple times that he agreed submicron interconnects of the size discussed in OLLING would require superfilling.

[00:15:07] Speaker 00:
For example, appendix page 948, page 161, 16 through 19.

[00:15:14] Speaker 00:
Quoting Anthons expert, a person skilled in the art who was examining the island patent applications would understand that filling of sub-micron features require super-filling.

[00:15:24] Speaker 00:
Several other references, appendix 946 at 15420 through 1551.

[00:15:29] Speaker 00:
And I believe we discussed earlier successfully plating copper and chip interconnects of 200 nanometers or less is going to involve super-filling, correct?

[00:15:38] Speaker 00:
answer, for those interconnects of that dimension, 200 nanometers or less, yes.

[00:15:43] Speaker 00:
For larger interconnects, perhaps not.

[00:15:45] Speaker 00:
So EnthonsXpert is clearly agreeing that that reference to 200 nanometers is connecting that to a super filling context.

[00:15:53] Speaker 00:
And that same disclosure appears in Barstad, Morsee, and Olling.

[00:15:58] Speaker 00:
Further evidence that there was motivation combined and the factual error by the board there was key.

[00:16:04] Speaker 00:
I'd leave them out of time, so.

[00:16:06] Speaker 03:
You're out of time.

[00:16:07] Speaker 03:
We'll give you two minutes, sir.

[00:16:10] Speaker 03:
Mr. Heavens.

[00:16:27] Speaker 01:
May it please the Court, good afternoon.

[00:16:29] Speaker 01:
Is claim one representative?

[00:16:30] Speaker 01:
Do you agree with the VA, I said?

[00:16:32] Speaker 02:
I do not, no.

[00:16:33] Speaker 02:
Okay.

[00:16:33] Speaker 02:
If this

[00:16:35] Speaker 02:
position is rejected by this court, there are other reasons why the claims are valid that were not addressed in this decision.

[00:16:41] Speaker 03:
Let me ask a couple of questions about the board's decision because I'm struck by what appears to be, first of all, a miscitation on 21 and 22 where they reject this argument that the dimensions disclosed in

[00:17:02] Speaker 03:
falling necessarily require superfilling.

[00:17:06] Speaker 03:
And they say, no, that's not true, quote, because those specific dimensions could effectively receive electrodeposition without superfilling.

[00:17:16] Speaker 03:
And they cite page 2031 in paragraph 69 for that proposition.

[00:17:22] Speaker 03:
I have read that paragraph, and it seems to me that it does not.

[00:17:28] Speaker 03:
support what the board says about it.

[00:17:30] Speaker 03:
And I notice, if I recall correctly, that your brief doesn't address that problem.

[00:17:35] Speaker 03:
Could you address it now, please?

[00:17:37] Speaker 03:
Sure.

[00:17:39] Speaker 02:
I would say two things.

[00:17:40] Speaker 02:
Thing one is that in the patent itself, the 992 patent, in column two, lines 34 and 42.

[00:17:46] Speaker 03:
No, no.

[00:17:46] Speaker 03:
Just be specific.

[00:17:49] Speaker 03:
Is that not a miscite in the board's decision?

[00:17:51] Speaker 03:
Paragraph 69 does not support the proposition for which it's cited, right?

[00:18:26] Speaker 02:
No, I think 69 is supportive of the point.

[00:18:30] Speaker 02:
And when I say that, what I mean by that is that Olling says there's a 200 nanometer historical fill in the background only of Olling where he says in the... No, no, but point me specifically to where in paragraph 69 it says that.

[00:18:46] Speaker 03:
I don't see it.

[00:18:48] Speaker 03:
Paragraph 69.

[00:18:50] Speaker 03:
This is at 1029, right?

[00:18:52] Speaker 03:
Yeah.

[00:18:52] Speaker 03:
If I were the board, I would have also cited other – No, no.

[00:18:56] Speaker 03:
That's not the question.

[00:18:57] Speaker 03:
The question is, does this support it?

[00:19:00] Speaker 03:
I believe it does.

[00:19:01] Speaker 02:
Well, when it says, in fact, Alling makes no mention of super filling, no mention of bottom-up filling, no mention of aspect ratio.

[00:19:10] Speaker 03:
Aspect ratio is very important.

[00:19:11] Speaker 03:
That is not the same thing as saying that

[00:19:14] Speaker 03:
You don't need super filling for items of this dimension.

[00:19:18] Speaker 03:
And I don't see that.

[00:19:19] Speaker 02:
That statement is not in 69.

[00:19:21] Speaker 03:
Okay, that's the problem.

[00:19:23] Speaker 03:
That's what they say it is and it isn't.

[00:19:25] Speaker 03:
So why isn't that a ground for remanding to have them rethink it?

[00:19:30] Speaker 02:
The reason I would say that it's not is because Allen was talking about historical facts when they moved from aluminum to copper and you had a 200 nanometer dimension.

[00:19:40] Speaker 02:
Howling does not mention the aspect ratio, does not mention aspect ratios anywhere in the patent.

[00:19:45] Speaker 03:
The patent that issued, the 992 patent, expressly says that... Well, that may or may not be true, but the problem is we've got a board decision, a crucial finding about

[00:19:56] Speaker 03:
why Hauling doesn't disclose superfilling, a wrong citation, which you admit for that proposition, why doesn't that mean we should remand?

[00:20:04] Speaker 02:
Because Hauling also is a two-metal bath.

[00:20:07] Speaker 02:
And a two-metal bath means you're depositing two different metals.

[00:20:10] Speaker 02:
And when you're depositing two different metals, you have to hold your resistance level set at each of the two voltages.

[00:20:17] Speaker 03:
That's important because... I don't think that's responsive to my question.

[00:20:20] Speaker 02:
Let me, give me, spot me a minute.

[00:20:22] Speaker 02:
When you do conformal coding, you put a suppressor over the surface to have a uniform electrical resistance across the coding.

[00:20:30] Speaker 02:
Then when you apply a voltage, you have the same current density across the surface.

[00:20:35] Speaker 02:
With the same current density, you get the same deposition across the surface.

[00:20:39] Speaker 02:
If you have two metals in the bath, Elling teaches

[00:20:42] Speaker 02:
that at one current density, you will only plate the one metal.

[00:20:46] Speaker 02:
At the other current density, you'll plate both metals.

[00:20:48] Speaker 02:
And the point of OLLING is to have... It's a different argument.

[00:20:51] Speaker 02:
I mean, I've asked you a specific question.

[00:20:53] Speaker 03:
But scientifically... You admit the board's decision creates as a miscitation on a key point.

[00:21:01] Speaker 03:
And my question is, why should we not remand under those circumstances?

[00:21:06] Speaker 02:
The reason is because the statement in OLLING is in the background.

[00:21:11] Speaker 02:
The rest of the patent talks about what Ahlin is teaching, which is the chemistry of trying to plate two metals at the same time.

[00:21:18] Speaker 02:
And the only way you can plate two metals at the same time is if you're conformal coding each of the two metals.

[00:21:22] Speaker 04:
But the board didn't explain that point, did it, as an independent ground for not giving significance to the Ahlin statement about the non-genetic?

[00:21:37] Speaker 02:
It did at the end on page 25.

[00:21:40] Speaker 02:
be quoted directly from Barkey.

[00:21:43] Speaker 02:
And when it says there, in the quote, the highlighted quote, Dr. Barkey also testifies in the view of Allen, one of ordinary skill in the art would, then in the quote, not encounter, acknowledge, or deal with the much more complex phenomenon of superfilling, which requires that the suppressor have balanced properties that allow it to adsorb to the cathodic copper surface,

[00:22:05] Speaker 02:
but to be subject to removal, displacement, or exclusion by an accelerator that is also present in the electrodeposition solution and to a degree that varies along a vertical gradient within the submicron feature so as to promote superfilling.

[00:22:18] Speaker 02:
That gradient is extremely important because that gradient is the gradient of the suppressor in the submicron feature.

[00:22:24] Speaker 02:
That gradient means you have a resistive gradient.

[00:22:26] Speaker 02:
That resistive gradient means you have a variable current

[00:22:29] Speaker 02:
And the variable current means you're going to deposit different metals throughout the thing.

[00:22:33] Speaker 02:
You're not going to be in control at all.

[00:22:34] Speaker 02:
And so it can't work that way because Ohlin teaches to deposit one metal or the other metal at two distinct and discrete voltages, which will give you two discrete current densities, which will give you two discrete metals, which is what Ohlin teaches.

[00:22:47] Speaker 02:
Two metals.

[00:22:47] Speaker 02:
He doesn't teach a mix of metals.

[00:22:49] Speaker 02:
He teaches either all the conductive metal or else the alloy of that metal, which is highly resistive.

[00:22:55] Speaker 02:
And he teaches plating those one over the other

[00:22:58] Speaker 02:
above that 200 nanometer thing that's going on in the chip.

[00:23:01] Speaker 02:
Because that's what it's designed to do, is to create the layers above the chip that are going to make the interconnects.

[00:23:06] Speaker 04:
Can I ask you, when we were talking with Mr. Blythe, the topic that we've just been talking about was one of what is in my mind is two very concrete, focused, specific

[00:23:22] Speaker 04:
possible problems with the board decision.

[00:23:25] Speaker 04:
We've just talked about one.

[00:23:26] Speaker 04:
I'd like to ask you about the other.

[00:23:28] Speaker 04:
That is the specific relationship, inconsistency, as Mr. Blythe says, between what the board said about bar staff

[00:23:40] Speaker 04:
at pages, I was in A22, 23, in this case, and what the board said about bar stat at page A409 of the 7860.

[00:23:52] Speaker 04:
And I don't think globally what it said about bar stat.

[00:23:57] Speaker 04:
I think you understand.

[00:23:58] Speaker 04:
Yeah, I'd like to explain why I think the two are consistent.

[00:24:00] Speaker 04:
About the reading of bar stat

[00:24:02] Speaker 04:
as not, in one, as seeming to say that tectronic product was one of the surfactant suppressors, and in this case as saying Barstaff didn't really teach the tectronic stuff as one of the surfactant suppressors.

[00:24:20] Speaker 02:
Well, the direct answer to your question is found in the first board decision of page 18, it's appendix 410.

[00:24:27] Speaker 02:
And what the deal is is that the first patent, the 787 patent,

[00:24:33] Speaker 02:
The 786PAT, I apologize, is directed just to the chemistry, just to the molecule.

[00:24:39] Speaker 02:
And we tried to read a superfill function into that molecule, and the board rejected that.

[00:24:44] Speaker 02:
Once you take away the superfill function from the molecule, you're left with a priori molecule.

[00:24:50] Speaker 03:
I'm not understanding this.

[00:24:51] Speaker 03:
I mean, there are two seemingly directly contradictory statements in the two IPR decisions.

[00:24:58] Speaker 03:
And what I think we're asking you about is

[00:25:01] Speaker 03:
Doesn't that suggest that we need to send it back to have them reconcile the two statements?

[00:25:09] Speaker 02:
I don't think so.

[00:25:10] Speaker 02:
And the reason, I don't think they're inconsistent because a suppressor in Olling, DeTronach functions as a suppressor in Olling because Olling needs conformal plating.

[00:25:20] Speaker 03:
We're not talking about Olling.

[00:25:22] Speaker 03:
We're talking about Barstead.

[00:25:23] Speaker 03:
There's two contradictory statements about Barstead in one

[00:25:27] Speaker 03:
They seem to say it discloses tetronic as a suppressant, and in the other one, it seems to say it doesn't.

[00:25:35] Speaker 03:
It's that simple.

[00:25:36] Speaker 03:
Okay.

[00:25:37] Speaker 04:
So it's this sentence at 8409, which is page 17 of the 786 decision.

[00:25:44] Speaker 04:
that says Barstat discloses, as noted above, surfactant-type suppressor agents.

[00:25:51] Speaker 04:
Barstat discloses polyethylene glycol copolymers as preferable surfactant-type suppressor agents.

[00:25:58] Speaker 04:
And that phrase is specifically, I think at column three, lines 19 or so, of Barstat specifically talking about

[00:26:07] Speaker 04:
super fillings.

[00:26:09] Speaker 04:
I don't think he uses the expression super fillings, but it's about fast filling of vias and trenches.

[00:26:16] Speaker 04:
And then the sentence immediately continues, sentence in the 786, and expressly discloses the polyethylene glycol cold polymers that were commercially available from the ASF under the tetronic treatment.

[00:26:29] Speaker 04:
For all the world, that seems to say Barstat connects the tectronic with the very kind of suppressor agents, namely, surfactant types, that Barstat teaches for use in where superfilling is needed.

[00:26:46] Speaker 02:
And I apologize, you started reading before I could see where you started.

[00:26:49] Speaker 04:
Could you point me to that page again?

[00:26:51] Speaker 04:
A409 roughly lying at the bottom of the first full paragraph, the last sentence.

[00:26:59] Speaker 02:
Which says, as noted above, borstat discloses polyethylene glycol copolymers.

[00:27:03] Speaker 04:
Yes.

[00:27:04] Speaker 02:
As surfactant-type suppressor agents.

[00:27:09] Speaker 02:
and expressly discloses polyethylene glycol copolymers that were commercially available as other tectronic agents.

[00:27:13] Speaker 04:
And that phrase, surfactant-type suppressor agents, is in column three of our set, which is talking about the deep, narrow channels used for which superfilling is long.

[00:27:27] Speaker 04:
And then the second half of that very same sentence from the board seems for all the world to say, and tectronic is one of them,

[00:28:03] Speaker 02:
Well, if you look at the actual reference, Barstadt, at line 51, it says, particularly suitable surfactants for plating compositions of the invention are commercially available polyethylene glycol copolymers, including polyethylene glycol copolymers.

[00:28:17] Speaker 02:
Such polymers are available from EGBSF, Solbaby, and their tetronic and chloronic tradenames.

[00:28:23] Speaker 02:
It calls them a surfactant.

[00:28:24] Speaker 02:
It does not call them a suppressor.

[00:28:26] Speaker 02:
in the actual reference.

[00:28:27] Speaker 04:
Doesn't this phrase surfactant-type suppressor agent come from column 3, line 21 to 22 of our set, which is at A4, B4?

[00:28:41] Speaker 02:
Column 3, line 22?

[00:28:42] Speaker 04:
That's what I'm looking at, yeah.

[00:28:44] Speaker 04:
Yes, line 21 to 22.

[00:28:53] Speaker 02:
Well, it says, in addition to such an elevated brightener concentration, preferably the plating bath also contains a surfactant-type suppressor agent.

[00:29:00] Speaker 02:
The surfactant type suppressor agent, there's a pleuronic.

[00:29:03] Speaker 04:
It doesn't have a nitrogen.

[00:29:04] Speaker 04:
It has been surprisingly found that use of such a suppressor agent in combination with elevated Breitner concentration can result in effective bottom fill copper plating of a microvia or other aperture without defects such as voids and voids, right?

[00:29:24] Speaker 04:
So talking about this very same super filling problem, no.

[00:29:30] Speaker 02:
The suppressor that's used in Barstadt is the non-ionic product.

[00:29:36] Speaker 04:
And the second half of this sentence at 409 appears to be connected to the first half by saying one of these things, Barstadt reveals, one of such, one of these seems to be the tectronic stuff.

[00:29:55] Speaker 02:
Tectronic is always referred to as a surfactant in Barstadt.

[00:30:01] Speaker 02:
The surfactant type suppressor in barstat is pleuronic, which is non-ionic and has no nitrogen.

[00:30:09] Speaker 02:
Tetronic has nitrogen.

[00:30:11] Speaker 03:
The problem is that the board said two different things about barstat, directly contradictory to each other.

[00:30:19] Speaker 03:
In the one patent, the one that's at issue here, they said that barstat doesn't disclose tetronic as a suppressor.

[00:30:28] Speaker 03:
In the other opinion, they said it did.

[00:30:31] Speaker 03:
What are we supposed to do about that?

[00:30:34] Speaker 02:
Well, I think the difference is that what does the word suppressor mean?

[00:30:39] Speaker 02:
In the context of superfilling, a suppressor is different than in the context of where you don't have a superfill imitation.

[00:30:47] Speaker 02:
And when you just have chemistry being claimed, as you have in the 786 patent, you don't get to include that superfill function.

[00:30:54] Speaker 02:
And then the suppressor becomes a broader word.

[00:30:57] Speaker 02:
In the context of the 992 pat, which is an issue here, the word suppressor is limited to things that super fill.

[00:31:04] Speaker 02:
And then suddenly, your view of what a person of ordinary skill in the art would understand to be a suppressor changes and is much more narrow.

[00:31:10] Speaker 02:
And that's how you explain these two cases.

[00:31:13] Speaker 02:
The first case was the molecule, the chemistry, no function.

[00:31:16] Speaker 02:
So therefore, you have a problem because you can't include the function to survive the art.

[00:31:21] Speaker 02:
In the other case on appeal here, you have the function

[00:31:24] Speaker 02:
And with that function, you survive the art because nobody understood that a cationic species with a positive charge that's going to get pulled up to a cathode during electroplating is ever going to release.

[00:31:34] Speaker 02:
The only use – the BASF paper that talked about cationic species called it a Type II suppressor.

[00:31:40] Speaker 02:
It meant it's just good for conformal plating.

[00:31:42] Speaker 02:
Everybody thought this kind of a cationic species would only work for conformal, and to the surprise of everyone, it turns out it's the only species that still works even at a 10 nanometer node, much less a 200 nanometer node.

[00:31:52] Speaker 03:
Okay, Mr. Evans, thank you.

[00:31:54] Speaker 03:
I think we're out of time.

[00:31:55] Speaker 03:
Thank you.

[00:32:15] Speaker 00:
Thank you, Your Honor.

[00:32:16] Speaker 00:
Quickly, I think a couple of intons arguments that I can address very quickly that are sort of immaterial.

[00:32:22] Speaker 00:
One is the continued reference to cationic surfactants and suppressors.

[00:32:25] Speaker 00:
It permeates the brief.

[00:32:27] Speaker 00:
Use the microphone.

[00:32:28] Speaker 00:
Sorry, the reference to cationic suppressors as opposed to non-ionic.

[00:32:32] Speaker 00:
It permeates the brief and is referenced today.

[00:32:35] Speaker 00:
That's something that's not in the claims.

[00:32:37] Speaker 00:
There's no claim instruction about it, no requested claim instruction about it.

[00:32:40] Speaker 00:
Nothing in the claims deals with cationic versus non-ionic suppressors, so we think that's immaterial.

[00:32:45] Speaker 00:
To circle back, though, to barstat, there's another section of barstat.

[00:32:48] Speaker 04:
Are the nitrogen-based components that are recited in the claim, in fact, cationic, in the acids that they tend to be?

[00:32:59] Speaker 00:
They can be if they're in an acidic solution, but the claims also don't require an acid.

[00:33:03] Speaker 00:
And in fact, the specification also describes either acidic or alkaline plating mass.

[00:33:08] Speaker 00:
So maybe you could argue if it was an acid, but the acid isn't required either.

[00:33:13] Speaker 00:
So circling back to barstead, Enthon argued that there's a significance about whether or not the 76 patent required superfilling.

[00:33:22] Speaker 00:
I think that's immaterial to what the board found out was disclosed in barstead.

[00:33:26] Speaker 00:
The board clearly, as we've discussed today, linked the disclosure in barstead of a surfactant type suppressant to the disclosure of tetronic copolymers.

[00:33:33] Speaker 00:
And if you flip also back earlier in that 786 decision to APPX 400, where the board describes barstead, it lays out in even greater length the discussion of the surfactant-type suppressor agent and the surprising results of using such a suppressor agent for superfilling.

[00:33:52] Speaker 00:
And in the very next paragraph, again, Bloch quotes Barstad's disclosure of BASF tetronic and pleuronic co-polliners.

[00:34:02] Speaker 00:
So, again, that's two places in the 786 patent that is clearly linking the disclosure of surfactant-type suppressors and tetronics in Barstad.

[00:34:10] Speaker 01:
If we sent this back down.

[00:34:13] Speaker 01:
Other than the two contradictory issues that we identified in this discussion, is there anything else that you would think the board would be required to address?

[00:34:26] Speaker 00:
I think the board should be admonished to follow the correct obviousness standard.

[00:34:29] Speaker 00:
I mean, I think you can apply an overly heightened standard based on a general finding of predictability, but I think I may be asking too much.

[00:34:40] Speaker 03:
Thank you.

[00:34:42] Speaker 03:
Thank you, Mr. Blythe.

[00:34:43] Speaker 03:
Thank you, both counsel.

[00:34:44] Speaker 03:
The case is submitted.